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Commonwealth v. Cherubin9/13/2002
Middlesex.
April 10, 2002
Homicide. Practice, Criminal, Instructions to jury, Waiver. Malice.
Indictments found and returned in the Superior Court Department on February 28, 1991.
On November 26, 1991, a jury convicted the defendant of murder in the second degree (G. L. c. 265, § 1), two counts of leaving the scene of an accident after causing personal injury (G. L. c. 90, § 24 ), and two counts of assault and battery by means of a dangerous weapon, specifically an automobile (G. L. c. 265, § 15A). In 1993, the defendant's direct appeal from those convictions and from the denial of his companion motion for judgment notwithstanding the verdict, pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), claiming insufficient evidence, was reviewed under the familiar test of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). We held that there was sufficient evidence to sustain the convictions. Commonwealth v. Cherubin, 35 Mass. App. Ct. 919 (1993).
On July 20, 2000, the defendant filed his second motion for a new trial, challenging only his murder conviction on the basis of error in the jury instructions with respect to the third prong of malice and on alleged ineffective assistance of counsel in failing to object to the instruction. The motion judge, who had also presided at the trial, denied the motion, and this appeal followed.
We are mindful that the defendant did not complain of the erroneous instructions in his first appeal or in his initial motion for new trial and that such new claims must be weighed against the Commonwealth's (and the victim's) interests of finality and the fair and efficient administration of justice. See Commonwealth v. Amirault, 424 Mass. 618, 636-637 (1997); Commonwealth v. Azar, 435 Mass. 675 (2002). Nevertheless, we hold that the erroneous instructions created a substantial risk of a miscarriage of justice and that a new trial on the murder indictment is required.
1. Background. On September 16, 1990, from about 8:00 P.M. to 11:00 P.M., the victim, Jody Driscoll, was visiting at John Barrett's Everett apartment, and drank beer with him and some other friends, including Jennifer Ginewicz, Jennifer Fortier, and Kenneth Huntley. At approximately 11:00 P.M., the victim left the apartment, accompanied by Huntley, and approached the defendant, a stranger, who was making a telephone call from a pay telephone in an adjacent parking lot while his girlfriend waited in his 1989 Pontiac Grand Prix automobile. After an acrimonious conversation between them, the defendant appeared annoyed and pushed the victim forcefully away.
The victim returned to the apartment, told her friends what had happened, and quickly went back to the scene of the confrontation accompanied by Ginewicz and Fortier, apparently intending some form of retaliation. Meanwhile, Barrett and Huntley followed at a distance, anticipating a problem and hoping to prevent any further altercation. As the women were crossing a street adjacent to the parking lot, the defendant abruptly drove his car out of the parking lot. The tires screeched as the car turned the corner into the street where the women were crossing. In a brief instant, the defendant aimed the car, swerved, and first struck Ginewicz and then the victim. The defendant left the scene without stopping.
Alfred Porcaro, the driver of another car with three passengers, witnessed the incident and chased the defendant's car into Malden where they forced him to stop. Porcaro exited his car and accused the defendant of leaving the scene after hitting a young woman (the victim). The defendant then redirected his car toward Porcaro and began driving. Porcaro sla
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